IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-744

No. COA22-97

Filed 15 November 2022

Wake County, No. 19CRS219702

STATE OF NORTH CAROLINA

v.

KWAIN HAWKINS

Appeal by defendant from judgment entered 25 June 2021 by 

Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of 

Appeals 19 October 2022.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Sherri 

Horner Lawrence, for the State.

Mark Montgomery, for the defendant-appellant.

TYSON, Judge.

¶ 1 Kwain Hawkins (“Defendant”) appeals from the judgment entered upon a 

jury’s verdict for one count of statutory rape of a child fifteen years or younger and 

two counts of taking indecent liberties with a child. Defendant’s appeal is dismissed. 

I. Background

¶ 2 Fifteen-year-old “Anna” walked from the bus stop to her house on 17 October 

2019. (Pseudonym used to protect identity of minor, per N.C. R. App. P. 41(b)). She 
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rode to and from school every day on the bus, which dropped her off about five minutes 

from her home. Anna had been diagnosed with autism and experienced social 

anxiety, but is a well-behaved child, who always arrived home promptly between 4:00 

and 4:30 p.m.

¶ 3 On 17 October 2019, Anna noticed an older man standing across the street 

from the bus stop. The man, who was later identified as Defendant, made eye contact 

with her. Anna attempted to ignore him when crossing the street, and she continued 

to listen to music through her headphones while walking home. 

¶ 4 Defendant approached Anna and walked alongside her. He asked her: how old 

she was; if she had a boyfriend; if she found him attractive; if she had ever had sex 

before; and if she smoked. Anna attempted to ignore Defendant and contemplated 

whether to answer his questions truthfully.

¶ 5 Defendant asked Anna to walk with him to the park. Anna misheard 

Defendant because of the music playing on her headphones. She thought Defendant 

had said “parking lot,” which was near her home. Anna agreed, hoping Defendant 

would leave her alone and rationalizing that she could quickly walk home from the 

parking lot. Defendant then asked to hold her hand. Anna said “no” three times 

before finally giving in. Anna’s mother would later explain to an investigating officer 

that Anna’s social anxiety causes her to avoid “push[ing] back at people because she 

hates to be mean and prefers to be a people pleaser.”
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¶ 6 Defendant led Anna to an open area, situated between two apartment 

buildings, that did not look like a park. Anna and Defendant sat together on a bench 

for a few minutes before she told Defendant she was going home. Defendant 

repeatedly asked Anna for a hug before she left, and he refused to accept “no” as an 

answer.

¶ 7 While hugging her, Defendant instructed Anna to remove her backpack and 

give him a “proper” hug. Anna complied out of fear. Defendant starting kissing Anna 

on the lips and demanded for her to return the kiss. Defendant moved his hands 

towards Anna’s pants and “grabbed [her] bottom.” He put his hands inside of Anna’s 

pants and “put his fingers inside [her] vagina.” 

¶ 8 Defendant directed Anna to follow him to a “more private” wooded area behind 

the apartment buildings. Once they reached the wooded area, Defendant told Anna 

“to turn around and pull down [her] pants.” When Anna asked “why,” he repeatedly 

told her to “bend” over. Anna asked whether Defendant would hurt her if she refused 

to comply. Eventually, Anna complied with Defendant’s demands. Defendant stood 

behind Anna and penetrated her vagina with his penis. This rape continued until 

Defendant was startled by a white van that pulled in behind the apartment complex 

and parked.

¶ 9 Defendant told Anna to follow him, so Anna pulled up her pants and grabbed 

her backpack. Anna walked behind Defendant because she “felt safer.” Defendant 
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asked Anna for her name and where she lived. Anna gave Defendant a false name 

because she did not “want him to ever come back.” She also pointed in the opposite 

location of where her house was located because she “wanted to keep [her] family 

safe.”

¶ 10 Anna’s grandmother testified Anna had arrived home late and started crying 

uncontrollably after admitting she had been raped. Anna’s grandmother took Anna 

to Wake Med North Hospital, while Anna’s mother contacted law enforcement. Wake 

Med North transferred Anna to Wake Med’s main hospital campus to collect a rape 

kit.

¶ 11 A scientist in the forensic biology section of the North Carolina Crime Lab later 

analyzed the rape kit. She determined the male DNA identified on Anna’s vaginal 

swabs matched Defendant’s DNA.

¶ 12 While examining Anna’s clothing and undergarments, a City-County Bureau 

of Identification agent observed white residue in the groin area of Anna’s underwear. 

He noticed “brownish colored stains on the inside of the legs of [Anna’s] leggings.”

¶ 13 Video surveillance from a nearby middle school showed two individuals, 

matching Anna and Anna’s description of her assailant, walking from the bus stop 

towards Anna’s home around 4:00 p.m. on 17 October 2019. One of the investigating 

officers used this surveillance footage to capture a photograph of Defendant. The 

officer posted the photograph on an internal Raleigh Police Department website, 
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which is accessible to all officers and detectives, and instructed officers to “Be On The 

Lookout” (“BOLO”) for the individual shown in the photo.

¶ 14 Two officers, unrelated to the investigation, recognized Defendant from the 

BOLO post and contacted the officer who had posted the image. Those officers 

explained they were “about 85 percent [sure] that the suspect [pictured] is Kwain 

Hawkins” and included Defendant’s date of birth.

¶ 15 A Wake County grand jury indicted Defendant with one count of statutory rape 

of a child fifteen years old or younger and two counts of taking indecent liberties with 

a child on 9 March 2020. Anna’s mother and grandmother corroborated Anna’s 

testimony. The State entered all of the physical and testimonial evidence outlined 

above at trial. 

¶ 16 Defendant attempted to elicit expert testimony from a nurse, Caron Jones 

(“Jones”), during his case-in-chief. Jones, a registered nurse, was previously 

specialized as a “family nurse practitioner and a certified nurse midwife,” although 

her certification to practice as a registered nurse and midwife had expired. Jones 

was not certified as a Sexual Assault Nurse Examiner (“SANE”), and she had not 

conducted an examination on a rape trauma victim in over twenty years. Before trial, 

Defendant had sent emails to the State indicating Jones was prepared to testify “with 

100 percent certainty [ ] the victim in this case had not been penetrated based on the 

amount of DNA that was found on her vaginal swabs.”
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¶ 17 The State filed a motion in limine to exclude this testimony because Jones 

intended to draw a legal conclusion about whether a sexual “penetration” occurred. 

N.C. Gen. Stat. § 8C-1, Rule 704 (2021). The State conceded at a pre-trial hearing 

Jones “could testify that there was nothing in the medical examination consistent 

with sexual abuse,” if tendered as an expert witness. 

¶ 18 After the voir dire of Jones, the trial court found and concluded Jones was only 

“qualified to describe female anatomy.” The trial court would have allowed Jones to 

testify there were “no findings of physical trauma in the medical records from the 

examination of [Anna],” but would not allow Jones to link her opinion “to any 

conjecture as to whether a sexual assault occurred because she d[id] not have a 

scientific basis for that linkage.” Defendant chose not to call Jones to testify 

purportedly because of the limitations regarding her testimony.

¶ 19 The jury’s verdict found Defendant to be guilty on all three charges. Defendant 

was sentenced as a prior record level IV offender. He received an aggravated sentence 

of 456 to 607 months. Defendant filed a timely notice of appeal.

II. Jurisdiction

¶ 20 Defendant filed a petition for writ of certiorari. He realized after filing his brief 

that a certificate of service evidencing service of his notice of appeal was missing from 

the record on appeal. Defendant also realized his notice of appeal omitted the trial 

court’s rulings, both the pretrial ruling on the State’s motion in limine and the ruling 
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following the voir dire of Jones during trial, regarding the limitations of Jones’ expert 

witness testimony.

¶ 21 Defendant’s notice of appeal only discussed the court’s ruling on the motion in 

limine regarding the use of the word “rape,” along with five other issues, none of 

which were discussed in neither Defendant’s nor the State’s briefs. In his list of 

proposed issues on appeal, Defendant included the “exclusion of testimony from the 

defendant’s expert witness.”

¶ 22 Whether a party adheres to the rules governing appellate procedure is a 

jurisdictional issue. Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 

N.C. 191, 197, 657 S.E.2d 361, 364-65 (2008) (“The appellant’s compliance with the 

jurisdictional rules governing the taking of an appeal is the linchpin that connects 

the appellate division with the trial division and confers upon the appellate court the 

authority to act in a particular case.”). 

¶ 23 “The North Carolina Rules of Appellate Procedure are mandatory and failure 

to follow these rules will subject an appeal to dismissal.” Viar v. N.C. Dep’t of Transp., 

359 N.C. 400, 401, 610 S.E.2d 360, 360 (2005) (citation and quotation marks omitted). 

¶ 24 A criminal defendant may appeal “from a judgment or order of a superior or 

district court” by:

(1) giving oral notice of appeal at trial, or

(2) filing notice of appeal with the clerk of superior court 
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and serving copies thereof upon all adverse parties

within fourteen days after entry of the judgment or 

order or within fourteen days after a ruling on a motion 

for appropriate relief made during the fourteen-day 

period following entry of the judgment or order. 

N.C. R. App. P. 4(a) (emphasis supplied). 

¶ 25 When a Defendant provides a written notice of appeal, the notice must also 

“designate the judgment or order from which appeal is taken and the court to which 

appeal is taken.” N.C. R. App. P. 4(b).

¶ 26 To preserve an issue for appeal, “a party must have presented to the trial court 

a timely request, objection, or motion, stating the specific grounds for the ruling the 

party desired the court to make if the specific grounds were not apparent from the 

context.” N.C. R. App. P. 10(a)(1). 

¶ 27 The party invoking appellate jurisdiction must also prepare a list of “[p]roposed 

issues that the appellant intends to present on appeal . . . without argument at the 

conclusion of the printed record in a numbered list.” N.C. R. App. P. 10(b). This list 

of proposed issues on appeal “shall not limit the scope of the issues presented on appeal

in an appellant’s brief.” Id. (emphasis supplied).

¶ 28 Rule 21 of the North Carolina Rules of Appellate Procedure provides an 

alternative, although a discretionary and extraordinary basis for parties to obtain 

appellate jurisdiction. State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959) 

(citations omitted) (explaining a petition for writ of certiorari “must show merit or 
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that error was probably committed below” and “is a discretionary writ, to be issued 

only for good and sufficient cause shown”). If a party petitions this court for a writ of 

certiorari, this Court, wholly within its discretion, may “suspend or vary the 

requirements or provisions of any of these rules in a case pending before it upon 

application of a party.” N.C. R. App. P. 2.

A. Certificate of Service Requirement per Rule 4(a) of North Carolina 

Rules of Appellate Procedure

¶ 29 This Court may issue a writ of certiorari “in appropriate circumstances . . . 

when the right to prosecute an appeal has been lost by failure to take timely action.” 

N.C. R. App. P. 21(a)(1) (emphasis supplied). “Rule 21(a)(1) gives an appellate court 

the [jurisdictional] authority to review the merits of an appeal by certiorari even if 

the party has failed to file notice of appeal in a timely manner.” Anderson v. 

Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997).

¶ 30 In Hale v. Afro-Am. Arts Int’l., Inc., this Court “dismissed defendants’ appeal 

after the record on appeal had been served on the appellee and docketed without 

objection in the Court of Appeals and after all briefs had been duly filed.” 335 N.C. 

231, 232, 436 S.E.2d 588, 589 (1993) (per curiam) (emphasis supplied). Our state 

Supreme Court disagreed with this Court’s decision. 

¶ 31 “[A] party upon whom service of notice of appeal is required may waive the 

failure of service by not raising the issue by motion or otherwise and by participating 
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without objection in the appeal, as did the plaintiff here.” Id. (reversing and 

remanding the case back to this Court “for consideration on the merits”).

¶ 32 Here, the facts are similar to those in Hale. While Defendant failed to include 

a copy of the certificate of service in the record on appeal, the State nevertheless 

responded to Defendant’s brief and filed responsive arguments without objection. 

Hale, 335 N.C. at 232, 436 S.E.2d at 589. The State only noticed the defect in the 

record after Defendant had raised the issue in his petition for writ of certiorari, which 

was filed over a month after the State submitted its reply brief. 

¶ 33 The State has waived their opportunity to raise the failure of service objection 

“by not raising the issue by motion or otherwise and by participating without 

objection in the appeal.” Id. If Defendant’s failure to include the certificate of service 

in the record on appeal was the only jurisdictional defect in his appeal, this Court 

could review Defendant’s appeal per Hale. 335 N.C. at 232, 436 S.E.2d at 589.

B. The “Designate the Judgment or Order” Requirement under Rule 4(b) 

of North Carolina Rules of Appellate Procedure

¶ 34 Our Supreme Court recently re-affirmed: “A writ of certiorari is not intended 

as a substitute for a notice of appeal because such a practice would render 

meaningless the rules governing the time and manner of noticing appeals.” State v. 

Ricks, 2021-NCSC-116, ¶ 6, 378 N.C. 737, 741, 862 S.E.2d 835, 839 (2021) (citation 

and quotation marks omitted).
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¶ 35 The Court in State v. Ricks reviewed a claim with jurisdictional defects due to 

a defendant’s failure to comply with the North Carolina Rules of Appellate Procedure. 

Id., ¶ 3-4, 378 N.C. at 739, 862 S.E.2d at 837-38 (citing the reasoning adopted by the 

dissent in State v. Ricks, 271 N.C. App. 348, 843 S.E.2d 652 (2020) (Tyson, J., 

concurring in the result in part and dissenting in part)). 

¶ 36 The defendant in Ricks “gave oral notice of appeal from his criminal 

convictions,” but “he made no objection to the imposition of SBM [at trial] and never 

filed a written notice of appeal of the SBM orders.” Id., ¶ 3, 378 N.C. at 739, 862 

S.E.2d at 837. The defendant filed “a petition for writ of certiorari seeking review of 

the SBM orders” after filing the record of appeal. Id. 

¶ 37 Our Supreme Court held this Court abused its discretion in Ricks by invoking 

Rule 2 to review a constitutional argument the defendant had failed to preserve at 

trial, which is required by Rule 10. Id., ¶ 5-6, 378 N.C. at 740-41, 862 S.E.2d at 838-

39 (noting the defendant also had failed to comply with Rule 3, which is the civil 

equivalent of Rule 4, by failing to file a written notice of appeal of the SBM issue); 

N.C. R. App. P. 2, 3, 4, and 10. 

¶ 38 “Though the Court of Appeals may issue a writ of certiorari to review a trial 

court’s order ‘when the right to prosecute an appeal has been lost by failure to take 

timely action,’ N.C. R. App. P. 21(a)(1), the petition must show ‘merit or that error 

was probably committed below.’” Id., ¶ 6, 378 N.C. at 741, 862 S.E.2d at 839 (citing 
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Grundler, 251 N.C. at 189, 111 S.E.2d at 9). 

¶ 39 Here, Defendant’s procedural defects differ from the defects present in Ricks 

because Defendant complied with Rule 10. Id., ¶ 5-6, 378 N.C. at 740-41, 862 S.E.2d 

at 838-39. The issue Defendant asks this Court to review on appeal was preserved 

at trial in accordance with Rule 10(a)(1). N.C. R. App. P. 10(a)(1) (noting, to preserve 

an issue on appeal, “a party must have presented to the trial court a timely request, 

objection, or motion, stating the specific grounds for the ruling the party desired the 

court to make” and the party must have “obtain[ed] a ruling”). 

¶ 40 The trial court ruled on the State’s motion in limine and its Rule 702 objection 

at trial. Defendant also included the exclusion of Jones’ expert witness testimony in 

his list of proposed issues on appeal, which is also required by Rule 10(b). N.C. R. 

App. P. 10(b). 

¶ 41 Although Defendant complied with Rule 10, Defendant’s appeal still possesses 

jurisdictional defects because of his failure to comply with Rule 4. Ricks, ¶ 6, 378 

N.C. at 741, 862 S.E.2d at 839 (citing Grundler, 251 N.C. at 189, 111 S.E.2d at 9); 

N.C. R. App. P. 4 and 10. Defendant’s petition for writ of certiorari must assert a 

showing of “merit or that error was probably committed below.” Id.

III. Restricting Expert Testimony

¶ 42 Defendant purports to raise one issue on appeal: whether the trial court erred 

by restricting Jones’ expert testimony. Defendant argues an expert witness is not 
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required to cite specific scientific studies to support their opinions when testifying to 

the characteristics of alleged rape victims. 

A. Standard of Review

¶ 43 “In reviewing trial court decisions relating to the admissibility of expert 

testimony evidence, this Court has long applied the deferential standard of abuse of 

discretion. Trial courts enjoy wide latitude and discretion when making a 

determination about the admissibility of [expert] testimony.” State v. King, 366 N.C. 

68, 75, 733 S.E.2d 535, 539-40 (2012) (citation omitted).

B. Analysis

¶ 44 Rule 702 of the North Carolina Rules of Evidence governs the admissibility of 

expert testimony, which provides: 

If scientific, technical or other specialized knowledge will 

assist the trier of fact to understand the evidence or to 

determine a fact in issue, a witness qualified as an expert 

by knowledge, skill, experience, training, or education, may 

testify thereto in the form of an opinion, or otherwise, if all 

of the following apply:

(1) The testimony is based upon sufficient facts or 

data.

(2) The testimony is the product of reliable principles 

and methods.

(3) The witness has applied the principles and 

methods reliably to the facts of the case. 

N.C. Gen. Stat. § 8C-1, Rule 702 (2021). 
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¶ 45 The trial court reviews and determines preliminary questions regarding the 

qualifications of a witness to testify as an expert witness and the admissibility of 

evidence. N.C. Gen. Stat. § 8C-1, Rule 104(a) (2021); State v. Goode, 341 N.C. 513, 

527, 461 S.E.2d 631, 639 (1995) (explaining Rule 702 and Rule 104(a) read 

conjunctively mean that when “a trial court is faced with a proffer of expert testimony, 

it must determine whether the expert is proposing to testify to scientific, technical, 

or other specialized knowledge that will assist the trier of fact to determine a fact in 

issue”).

¶ 46 The first prong of Rule 702 focuses on the principles and methodologies an 

expert utilized or relied upon when reaching their conclusions.

The subject of an expert’s testimony must be “scientific . . . 

knowledge.” The adjective “scientific” implies a grounding 

in the methods and procedures of science. Similarly, the 

word “knowledge” connotes more than subjective belief or 

unsupported speculation.

. . .

[I]n order to qualify as “scientific knowledge,” an inference 

or assertion must be derived by the scientific method. 

Proposed testimony must be supported by appropriate 

validation—i.e., “good grounds,” based on what is known. 

In short, the requirement that an expert’s testimony 

pertain to “scientific knowledge” establishes a standard of 

evidentiary reliability.

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589-90, 125 L.Ed.2d 469, 480-81 

(1993); see also Pope v. Bridge Broom, Inc., 240 N.C. App. 365, 376, 770 S.E.2d 702, 
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711 (2015) (citations and quotation marks omitted) (“The requirement that expert 

testimony must be based on scientific knowledge, means that the principles and 

methods used to form that testimony must be grounded in the scientific method. In 

other words, the principles and methods must be capable of generating testable 

hypotheses that are then subjected to the real world crucible of experimentation, 

falsification/validation, and replication.”).

¶ 47 Here, Defendant has failed to show the trial court did not act and rule within 

the allowable scope of its discretion. The trial court first applied the factors outlined 

in Daubert when determining whether Jones was qualified as an expert, focusing on 

the absence of reliable principles and methods. 

THE COURT: Okay. I think we’re here just simply – I 

have not really – my question was what studies did she rely 

on because one of the – you know, three criteria under 

Daubert is the underlying scientific theory must be valid, 

the technique applying the theory must be valid, and the 

technique must have been properly applied upon the 

occasion in question. . . . I was trying to understand what 

scientific theories was she relying upon in making these 

conclusions about the lack of physical trauma is 

inconsistent with a report of a 15-year-old being statutorily 

raped. And that’s – that is the – I was simply asking what 

scientific data she was relying on.

¶ 48 The trial court also contemplated how to balance Jones’ lack of credentials and 

training with Defendant’s right to present a defense. 

THE COURT: All right. This would put the Court in 

somewhat of a dilemma because, clearly, I have a 
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gatekeeping function under Rule 702 of the Rules of 

Evidence to exclude unqualified expert testimony, and I’ll 

candidly say much of what I heard falls into that category. 

What I am balancing that against – and normally that’s a 

discretionary call on my part[,] and I would simply exercise 

my discretion and make that ruling.

What I’m balancing here is there is a constitutional right 

of the defendant to present a defense, and that’s the 

challenge that I have here is that, in spite of my – in spite 

of what I’ve heard regarding the scientific basis or 

application of that scientific theory to this case, there is a 

higher burden on making a decision here. What I am – and 

there’s no doubt that Ms. Jones has extensive experience 

as a nurse-practitioner, a registered nurse, as an 

administrator in the health field. And certainly not 

diminishing that, but this case relates to sexual assault 

examinations in 2019, and that is where the expertise 

needs to be.

I would permit two opinions. Well, one, yes, I agree with 

the State that she is qualified to describe female anatomy. 

The second thing that I would allow her to testify to – and 

this is a very narrow opinion that she may render. She may 

tell the jury, if she so believes, that there are – there is –

are no findings of physical trauma in the medical records 

from the examination of the alleged victim in this case. 

However, she cannot link that opinion to any conjecture as 

to whether a sexual assault occurred because she does not 

have a scientific basis for that linkage.

¶ 49 Defendant has failed to demonstrate anywhere in the record that the trial 

court was not correctly analyzing and exercising its discretion to answer the 

preliminary question of whether Jones was qualified to testify as an expert witness, 

and to determine the allowable range and scope of her testimony. Goode, 341 N.C. at 
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527, 461 S.E.2d at 639. Defendant’s argument is without merit. 

IV. Conclusion

¶ 50 Defendant has failed to show merit or prejudice in his petition for writ of 

certiorari. Defendant’s explanations of his jurisdictional and procedural defects, in 

the exercise of our discretion, do not warrant this Court’s issuance of the writ without 

a showing of merit or that prejudicial error was probably committed by the trial court. 

Ricks, ¶ 6, 378 N.C. at 741, 862 S.E.2d at 839 (citing Grundler, 251 N.C. at 189, 111 

S.E.2d at 9). 

¶ 51 Defendant has failed to demonstrate anything tending to show the trial court 

abused its discretion by limiting the expert opinion testimony of Jones. Although 

Defendant was allowed to call Jones to testify, he failed to call and preserve her 

testimony or to make a voir dire proffer of what scientific evidence her testimony 

would have relied on. Defendant has failed to show he did not receive a fair trial, free 

from prejudicial errors he preserved and argued on appeal.

¶ 52 Defendant’s petition is denied, and the appeal is dismissed. It is so ordered.

DISMISSED

¶ Judges ZACHARY and HAMPSON CONCUR